Report of the European Group of Experts

161

in employment:

legislation in fifteen EU member states

Report of the European Group of Experts

on Combating Sexual Orientation Discrimination

about the implementation up to April 2004 of

Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation

6 Finland

by Rainer Hiltunen

1The European Group of Experts on Combating Sexual Orientation Discrimination

(www.emmeijers.nl/experts) was established and funded by the Commission of the European

Communities under the framework of the Community Action Programme to combat discrimination 2001- 2006 (http://europa.eu.int/comm/employment_social/fundamental_rights/index_en.htm).

The contents of the Group’s report do not necessarily reflect the opinion or position of national authorities or of the European Commission. The report, submitted in November 2004, aims to represent the law as it was at the end of April 2004; only occasionally have later developments been taken into account.

The full text of the report (including English versions of all 20 chapters and French versions of most chapters, plus summaries of all chapters both in English and French) will be published on the website just mentioned; links to it will be given on www.emmeijers.nl/experts.

2Mr. R. Hiltunen (rainer.hiltunen@iki.fi) has worked 1996 - 2002 as the executive director and legal counsellor for the National Lesbian and Gay Association Seta.

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6.1 General legal situation

6.1.1 Constitutional protection against discrimination

At the beginning of the Finnish Constitution

, Section 6(1) lays down the basic principle of equality:

‘Everyone is equal before the law.’

The equality principle is further explained in the section 6(2):

‘No one shall, without an acceptable reason, be treated differently from other people on the ground of sex, age, origin, language, religion, belief, opinion, health, disability or other reason that concerns his or her person.’

The list of prohibited discrimination grounds is not exhaustive. It is made clear in the explanatory memorandum to the Government proposal for the Constitution

that the subsection gives only examples of prohibited discrimination and e.g.

sexual orientation, social status, family relations and domicile are among ‘other reason that concerns his or her person’.

Section 6 of the Constitution does not absolutely prohibit differential treatment even when the differential treatment is because of a ground mentioned in the Constitution. The discrimination prohibited in the Constitution only occurs when the differential treatment cannot be objectively justified from the viewpoint of (basic) human rights.

Traditionally civil rights in the Constitution have been interpreted as setting an equal treatment principle for those in a position of public power and when applying the laws to the public.

From the 1990s it has been accepted that the Constitution may also have a direct or indirect horizontal effect. This means that constitutional provisions would be legally enforceable also in litigation between private parties.

In litigation, the use of this theory has been almost non-

existent.

Section 6 in conjunction with Section 22

has been seen to set a special obligation on the legislature and those holding positions of public power to follow the equality principle set in Constitution.

This principle was also

expressed in the explanatory memorandum to the Government proposal for Act on Registered Partnerships: ‘[Section 22 and Section 6] give the legislature an obligation to see to it that legislation does not include provisions that would set people in an unjustified unequal position because of their sexual orientation’

.

3Constitution 731/1999, in force since 1 March 2000.

4Government proposal 309/1993.

5See Scheinin, 1999, 239.

6See e.g. Viljanen, 1999, 136-138 and 153.

7See Viljanen, 1999, 153.

8See Länsineva 1998 117.

9Section 22 - Protection of basic rights and liberties: ‘The public authorities shall guarantee the observance of basic rights and liberties and human rights’.

10 Tuori, 1999, 668.

11 Government proposal 950/2001.

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There is no Constitutional Court, which could decide whether a law is in breach of the Constitution. It is the special task of the Constitution Committee in

Parliament to examine the conformity of the law with the Constitution. However, when an application of an Act in court would ’evidently’ conflict with the

Constitution, the court should give primacy to the provision in the Constitution.

If a provision in a Decree or another statute of a lower level than an Act is in conflict with the Constitution, it shall not be applied by a court of law or by any other public authority.

The European Convention on Human Rights has been incorporated by Act 438/1990, as directly applicable legislation in Finland.

6.1.2 General principles and concepts of equality

Apart from the constitutional principles described in paragraph 6.1.1 there are no other (unwritten) general principles of equality.

6.1.3 Division of legislative powers relating to discrimination in employment Parliament has the sole legislative power. It is an unwritten general principle that employment laws are prepared by the Government together with

representatives of employee and employer unions.

6.1.4 Basic structure of employment law

The Employment Contracts Act

covers most employees but not public employees. Employment law for civil servants is found in the Civil Servants Act,

and for the holders of municipal office it is in the Act on Holders of Municipal Office.

There is also a separate law on the position of those employed by the church: the Church Act,

and for seamen, the Seamen’s Act.

6.1.5 Provisions on sexual orientation discrimination in employment or occupation

Finnish legislation contained anti-discriminatory provisions even before the implementation of the Council Directive 2000/78/EC started in 2001. The provisions of the Penal Code and the Employment Contracts Act both explicitly prohibit discrimination based on sexual orientation.

Art. 3 of Chapter 47 of the Penal Code states:

‘Any employer or representative acting for an employer who in the recruitment process or during employment places a person into a disadvantageous position without a weighty, acceptable reason

12 Constitution, Section 106.

13 Constitution, Section 107.

14 Työsopimuslaki 55/2001.

15 Virkamieslaki 750/1994.

16 Laki kunnallisesta viranhaltijasta 304/2003.

17 Kirkkolaki 1054/1993.

18 Merimieslaki 423/1978.

19 The Ministry of Justice has provided the unofficial translation that I have used in the text. In many statutes the translation is however manifestly imprecise. In these cases I have translated the statute to be as accurate as possible. In this paragraph the concept of ‘weighty, acceptable reason’ was originally

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1) on grounds of race, national or ethnic origin, colour, language, gender, age, relations, sexual orientation,

or state of health; or

2) on grounds of religion, political opinion, political or industrial activity or a comparable circumstance,

shall be sentenced for work discrimination to a fine or up to six months imprisonment.’

Discrimination in employment has also been prohibited in art. 2 of Chapter 2 (Employer’s obligations) of the Employment Contracts Act:

‘The employer shall not, without an acceptable reason, treat employees differently on the basis of age, health, national or ethnic origin, sexual

orientation, language, religion, opinion, family ties, trade union activity, political activity or any other comparable circumstance’.

Provisions on the prohibition of gender-based discrimination are laid down in the Act on Equality between Women and Men (609/1986).

The implementation of the Council Directive 2000/78/EC is later described in detail starting from para. 6.2 below.

Although the main legislative change in implementing the Directive was the enactment of the Equality Act, but also the wording of the Employment

Contracts Act was also changed. In this change disability and belief were added to the list of prohibited discrimination grounds. The actual prohibition of

discrimination (‘employer shall not, without an acceptable reason, treat

employees differently on the basis of … sexual orientation’) was not changed, but according to the changed Employment Contracts Act the definition of discrimination is to be found in the new Equality Act. The Employment Contracts Act is however still in force and its travaux préparatoires have significance while defining prohibited discrimination in Finnish legislation. Its concept of prohibited discrimination is therefore analysed here.

It is worth noting that the level of justification for differential treatment is set higher in the Penal Code ('without a weighty acceptable reason) than in the Employment Contracts Act ('without an acceptable reason'). The concept of an acceptable reason is not explained further in the legislation itself. However, the explanatory memorandums to the Government proposals for the Penal Code

translated as ‘good reason’. Furthermore ‘places a person in disadvantageous position’ was originally translated as ‘discriminates’.

20 The unofficial translation provided by Ministry of Justice uses the term ’sexual preference’.

21 The Penal Code Chapter 47, Section 3: Work discrimination [as amended by the Act of 21 April 1995/578] reads: Rikoslaki 39/1889 47:3 ’Työsyrjintä Työnantaja tai tämän edustaja, joka työpaikasta ilmoittaessaan, työntekijää valitessaan tai palvelussuhteen aikana ilman painavaa, hyväksyttävää syytä asettaa työnhakijan tai työntekijän epäedulliseen asemaan 1) rodun, kansallisen tai etnisen alkuperän, ihonvärin, kielen, sukupuolen, iän, perhesuhteiden, sukupuolisen suuntautumisen tai terveydentilan taikka 2) uskonnon, yhteiskunnallisen mielipiteen, poliittisen tai ammatillisen toiminnan tai muun näihin

rinnastettavan seikan perusteella, on tuomittava työsyrjinnästä sakkoon tai vankeuteen enintään kuudeksi kuukaudeksi ’.

22 Työsopimuslaki 55/2001 ’Työnantaja ei saa ilman hyväksyttävää perustetta asettaa työntekijöitä eri asemaan iän, terveydentilan, kansallisen tai etnisen alkuperän, sukupuolisen suuntautuneisuuden, kielen, uskonnon, mielipiteen, perhesuhteiden, ammattiyhdistystoiminnan, poliittisen toiminnan tai muun näihin verrattavan seikan vuoksi. Sukupuoleen perustuvan syrjinnän kiellosta säädetään naisten ja miesten välisestä tasa-arvosta annetussa laissa.’

23 Here the unofficial translation provided by the Ministry of Justice uses the words ‘shall not exercise any unjustified discrimination’ and ‘sexual preference’.

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and the Employment Contracts Act both describe the concept in a similar way, which comes close to occupational requirements of the Directive Article 4(1).

It is clear that the acceptable reason has to be connected to the work the person does or is intended to do. Examples given in the explanatory memorandum to the Government proposal for the Penal Code include the following: it may be acceptable to employ a woman for a leading position in a women’s organisation; similarly, a political worker of a party may be required to have a certain political ideology. Also when appointing a person to a religious post, the applicants may be required to have the religious conviction of the organisation.

The justification for differential treatment, an acceptable reason, is limited and the examples given in the explanatory memorandum to the Government

proposal (see above) cannot be expanded. Therefore as the churches have the possibility to require a religious conviction for a religious post, this does not mean that they could discriminate against women or homosexuals if they have the religious conviction of the organisation.

According to the explanatory memorandum to the Government proposal

it is not required that the employer had a motive or an intention to discriminate. In other words, the person may have been put into an inferior position for

economical reasons etc. An example of this could be a situation when

productivity of a workplace has dropped because fellow workers do not accept a homosexual colleague. It is simply enough that the person is placed in an

inferior position because of her/his sexual orientation. To meet the criteria of discrimination, the employer must have been aware of the discrimination ground.

The explicitly mentioned grounds for prohibited discrimination vary from act to act. Sexual orientation has been explicitly mentioned in the work discrimination paragraphs of the Penal Code, the Employment Contracts Act and The Act on Holders of Municipal Office. The Act on Civil Servants and the Seamen’s Act do not mention sexual orientation explicitly although some other prohibited grounds are mentioned in addition to the general prohibition of discrimination in these acts.

While implementing the Directive and enacting the Equality Act, it was clearly the goal of the government to include all the discrimination grounds mentioned in the Directive in the prohibitions of discrimination in employment laws. In the version of the Bill which compares the new and old versions of The Act on Civil Servants, sexual orientation is explicitly mentioned as it is mentioned in the proposed change to Seamen’s Act. Apparently because a fault in preparation of the Bill, sexual orientation was not mentioned explicitly as a prohibited

discrimination ground in The Act on Civil Servants, in the version which just shows the proposed change. As a result sexual orientation was accidentally left

24 See also para. 6.4.4 below.

25 Nuutila, 1999, 996-997.

26 See Hiltunen, 2002, 20 and Minister of Justice Koskinen, Helsingin Sanomat 15 April 2002.

27 Government proposal 94/1993.

28 Government proposal 94/1993.

29 Art. 11 of the Act on Civil Servants reads: ’[civil servant must not be placed in an unequal position]

because of origin, … political opinion or comparable reason. Art. 15 of the Seamen’s Act reads: [employee must not be placed in an unequal position] because of origin, … political opinion or comparable reason’.

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out of list of explicit discrimination grounds in The Act on Civil Servants Act.

This does not mean that civil servants would not be protected against sexual orientation discrimination, as sexual orientation is explicitly mentioned in the Equality Act as is later explained in chapter 6.2 onwards.

6.1.6 Important case law precedents on sexual orientation discrimination in employment or occupation

There are two cases from the time before the current Employment Contracts Act and Penal Code came into effect. In 1977 the Administrative High Court approved the dismissal of a church youth leader because of the statements he had given about homosexuality and his inclination towards it.

Two Finnish peacekeeping soldiers were dismissed in 1981 for ‘medical reasons’ after being found kissing each other in their free time outside the military compound. A Finnish local court granted one of them compensation for damages but the district high court later rejected the compensation claim.

There have been no sexual orientation discrimination cases based on the work discrimination provisions of the Employment Contracts Act or the Penal Code.

During my period of six years as the legal counsellor for the National Lesbian, Gay, Bisexual and Transgender Association (SETA), I was however involved in several pre-trial settlements on sexual orientation discrimination cases in

employment.

As the same provisions in the Penal Code and the Employment Contracts Act also apply to other grounds of discrimination than sexual orientation, court cases based on these other grounds help to understand the anti-discrimination provisions.

In a recent case, a District Appeal Court confirmed the decision of a local court finding employment discrimination. The executive director and the director of a religious school were both sentenced to pay fines and financial compensation to the victim of work discrimination because of family relations (Penal Code 47:3).

They had refused to renew the contract of a kitchen worker after she had

started living together with her boyfriend. The accused explained that cohabiting without marriage was not acceptable according to the Christian ethics of the school.

See also the case of sexual orientation discrimination referred in 6.3.1.

6.1.7 Provisions on discrimination in employment or occupation that do not (yet) cover sexual orientation

The Act on Equality between Women and Men

has specific provisions against sex discrimination in employment. These provisions include the ban on sexual harassment. In a decision

the Ombudsman for Equality has stated that sexual orientation discrimination does not belong to the activities of the Ombudsman.

In the same decision the Ombudsman referred to the European Court decision

30 Korkein hallinto-oikeus [Administrative High Court] 11 February 1977, 531, 1407/45/75.

31 See Månsson, 1985, 344.

32 Itä-Suomen Hovioikeus [Itä-Suomi District Appeal Court] 12 September 2002, 1056, R 01/1271.

33 Laki miesten ja naisten tasa-arvosta (609/1986).

34 Decision 13 June 2001 number 45/59/00.

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P v. S

, according to which discrimination because of transsexuality is sex discrimination.

6.1.8 Provisions on sexual orientation discrimination in other fields than employment and occupation

The general anti-discrimination clause in the Penal Code was renewed in 1995, when sexual orientation was also added to the list of prohibited discrimination grounds.

Article 9 of Chapter 11

prohibits discrimination in the provision of services and in the exercise of a profession. It does not cover the relations between two private individuals, leaving out situations when a person e.g. sells or rents his/her apartment.

Article 9 reads: ‘Any person, who in exercising their trade or profession, serving the general public, exercising official authority or other public function, or

arranging public events or meetings without an acceptable reason

1) refuses someone service in accordance with the general practice;

2) refuses someone entry to the event or meeting or rejects them; or 3) places someone in an unequal or an essentially inferior position

on grounds of race, national or ethnic origin, colour, language, gender, age, family ties, sexual orientation, state of health, religion, political orientation, political or industrial activity or another comparable circumstance shall be sentenced, unless the act is punishable as industrial discrimination, for discrimination to a fine or to up to six months’ imprisonment.’

6.2 The prohibition of discrimination required by the Directive 6.2.1 Instrument(s) used to implement the Directive

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is hereinafter referred to as ‘the Directive’.

The work to implement the Directive started in March 2001, when the Ministry of Labour set up a working group to prepare the necessary legislation. The

working group consisted of representatives from four ministries and

representatives from employer and employee unions. No groups representing the discriminated groups mentioned in the Directive were included in the

35 Case C-13/94, P v. S and Cornwall County Council [1996] ECR I-2143.

36 Rikoslaki 11:9 (21.4.1995/578) reads: ’Syrjintä Joka elinkeinotoiminnassa, ammatin harjoittamisessa, yleisönpalvelussa, virkatoiminnassa tai muussa julkisessa tehtävässä taikka julkista tilaisuutta tai yleistä kokousta järjestettäessä ilman hyväksyttävää syytä 1) ei palvele jotakuta yleisesti noudatettavilla ehdoilla, 2) kieltäytyy päästämästä jotakuta tilaisuuteen tai kokoukseen tai poistaa hänet sieltä taikka 3) asettaa jonkun ilmeisen eriarvoiseen tai muita olennaisesti huonompaan asemaan rodun, kansallisen tai etnisen alkuperän, ihonvärin, kielen, sukupuolen, iän, perhesuhteiden, sukupuolisen suuntautumisen tai terveydentilan taikka uskonnon, yhteiskunnallisen mielipiteen, poliittisen tai ammatillisen toiminnan tai muun näihin rinnastettavan seikan perusteella, on tuomittava, jollei teko ole rangaistava työsyrjintänä, syrjinnästä sakkoon tai vankeuteen enintään kuudeksi kuukaudeksi.’

37 The unofficial translation provided by the Ministry of Justice uses words ‘without a good reason’ and

‘sexual preference’.

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working group. At the same time another group for implementing the so-called Race Directive

was also formed.

The group preparing the implementation of the Race Directive presented their proposal in the spring of 2002, but the group preparing the implementation of the Framework Directive never published a complete legislative proposal. In the autumn of 2002 the Ministry of Labour decided to integrate the implementation of both Directives into one combined legislative act. After consulting employees and employers union representatives, the Government proposal

was handed to Parliament on 20 December 2002.

The Government proposal consisted of enacting the Act on Protection of Equality

and minor amendments to four acts:

• the Act on the Minority Ombudsman

;

• the Employment Contracts Act

;

• the Seamen’s Act

, and

• the Act on Civil Servants

.

The Act on Protection of Equality is the legal core of the Governments proposal and it is therefore later referred to as ‘the Bill’. The minor amendments to the above mentioned other acts were necessary to give consistency to the legal framework if ‘the Bill’ itself would have been passed.

Nevertheless the list of prohibited grounds of discrimination in the Act on Civil Servants in the Government proposal does not mention sexual orientation. This is not explained in any way in the explanatory memorandum to the Government proposal.

The Constitution Committee of the Parliament heard experts who expressed a lot of criticism on the Bill. The Committee had also received a report

from the Labour and Equality Committee, which, among other things, criticised the Bill for setting the different discrimination grounds on an unequal legal basis. As the end of legislative session was drawing close, the Constitution Committee ceased handling the Bill in February 2003 and it became void because of general elections in March 2003.

The new Government announced in its program

that it would submit a Government proposal during the spring 2003 legislative period to replace the lapsed proposal. After the change of the prime minister in June 2003, the latest Government program

adjusted the schedule by announcing that the

Government proposal will be given during the year of 2003.

38 Council Directive 2000/43/EC.

39 Government proposal 269/2002, Hallituksen esitys Eduskunnalle laiksi yhdenvertaisuuden turvaamisesta sekä eräiden siihen liityvien lakein muuttamisesta.

40 Laki yhdenvertaisuuden turvaamisesta.

41 Laki vähemmistövaltuutetusta annetun lain muuttamisesta.

42 Laki työsopimuslain 2 luvun 2 §:n muuttamisesta.

43 Laki merimieslain 15 §:n muuttamisesta.

44 Laki virkamieslain 11 §:n muuttamisesta.

45 TyVL 24/2002 vp.

46 Government program 17 April 2003 p. 20.

47 Government program 24 June 2003 p. 22.

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On 12 September 2003 a new Bill (Government proposal 44/2003) was

presented to Parliament for implementing the Framework Directives. Parliament adopted the new legislation on 5 December 2003 and after the ratification by the President of Finland the Equality Act 21/2004 [Yhdenvertaisuuslaki] came into force on 1 of February 2004.

The legislative action consisted of an enactment of the Equality Act and minor amendments to five acts:

• the Act on the Minority Ombudsman

;

• the Employment Contracts Act

;

• the Seamen’s Act

;

• the Act on Civil Servants

and

• the Act on Holders of Municipal Office.

As described above, the Equality Act is the legal core of the legislative change and minor amendments to the other acts were needed to give consistency to the legal framework after the implementation of the directives. The Equality Act is analysed in detail in the following paragraphs.

6.2.2 Concept of sexual orientation (art. 1 Directive)

In the Finnish legislation sexual orientation has never been defined either in statutes or Government bills. However e.g. the Committee ‘Law and Same-sex partnerships’

which prepared the Act on Registered Partnerships

has

defined sexual orientation as homosexual, bisexual or heterosexual orientation.

The terms used for sexual orientation vary without any legal difference between them. The Penal Code uses the term ‘sukupuolinen suuntautuminen’ (sexual orientation), the Employment Contracts Act uses another version of the term,

‘sukupuolinen suuntautuneisuus’ (sexual orientation). There is no significant difference for most of the readers in these terms, but I consider the former to be more correct since the latter (suuntautuneisuus) can be seen as a ‘lighter’ form of orientation, closer to a preference. Also the official translation of the Directive uses the more accurate term ‘sukupuolinen suuntautuminen’.

The Act uses the concept ‘sexual orientation’ (section 1) without defining it further. It was probably thought to be self-evident and therefore it was not specified that the term referred to homosexual, bisexual and heterosexual orientation.

See also para. 6.1.5 above.

48 Laki vähemmistövaltuutetusta annetun lain muuttamisesta.

49 Laki työsopimuslain 2 luvun 2 §:n muuttamisesta.

50 Laki merimieslain 15 §:n muuttamisesta.

51 Laki virkamieslain 11 §:n muuttamisesta.

52 Laki kunnallisesta viranhaltijasta annetun lain 12§:n muuttamisesta

53 Laki ja samaa sukupuolta olevien parisuhteet, 1-3.

54 Laki rekisteröidystä parisuhteesta 950/2001.

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6.2.3 Direct discrimination (art. 2(2)(a) Directive)

The Equality Act (section 6(2)(1))

defines direct discrimination as: ‘treating a person less favourably than somebody else is treated, has been treated or would be treated in a comparable situation (direct discrimination)’. For the list of grounds, see par. 6.2.7, below.

See also para. 6.1.5 above.

6.2.4 Indirect discrimination (art. 2(2)(b) Directive)

The Equality Act (section 6(2)(2))

includes a definition of indirect discrimination, which was faithful to the Directive:

‘when an apparently neutral provision, criterion or practice would put a person at a particularly disadvantaged position compared with other persons unless the provision, criterion or practice is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (indirect discrimination)’.

In current legislation, only the Constitution and the Act on Equality between Men and Women

prohibit indirect discrimination.

6.2.5 Prohibition and concept of harassment (art. 2(3) Directive) The Equality Act (section 6(2)(3))

defines harassment on the basis of the concepts used in the Directive:

‘when the dignity or integrity of a person or group of people is violated either on purpose or de facto by creating an intimidating, hostile, degrading, humiliating or offensive environment (harassment).’

It is not required that harassment is directed to a certain individual. The

example given defines that ‘material publicly shown e.g. in business premises, which describes an [ethnic] group in an insulting or degrading way may be harassment’

.

In current legislation, the Occupational Safety and Health Act

prohibits harassment at the workplace. According to Chapter 4, section 18(3)

, an employee must avoid harassment or other inappropriate behaviour towards other employees, which might cause danger or harm to their health or safety.

55 The statute reads in Finnish: ’1) henkilön kohtelua epäsuotuisammin kuin jotakuta muuta kohdellaan, on kohdeltu tai kohdeltaisiin vertailukelpoisessa tilanteessa (välitön syrjintä)’.

56 The statute reads in Finnish: ’sitä, että näennäisesti puolueeton säännös, peruste tai käytäntö saattaa henkilön erityisen epäedulliseen asemaan muihin vertailun kohteena oleviin henkilöihin nähden, paitsi jos säännöksellä, perusteella tai käytännöllä on hyväksyttävä tavoite ja tavoitteen saavuttamiseksi käytetyt keinot ovat asianmukaisia ja tarpeellisia (välillinen syrjintä)’.

57 Laki naisten ja miesten välisestä tasa-arvosta 609/1986.

58 The statute reads in Finnish: ‘henkilön tai ihmisryhmän arvon ja koskemattomuuden tarkoituksellista tai tosiasiallista loukkaamista siten, että luodaan uhkaava, vihamielinen, halventava, nöyryyttävä tai

hyökkäävä ilmapiiri (häirintä)’.

59 Government proposal 269/2002 page 43.

60 Työturvallisuuslaki 738/2002.

61 The statute reads in Finnish: ’Työntekijän on työpaikalla vältettävä sellaista muihin työntekijöihin kohdistuvaa häirintää ja muuta epäasiallista kohtelua, joka aiheuttaa heidän turvallisuudelleen tai terveydelleen haittaa tai vaaraa.’

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And Chapter 4, section 28

sets an obligation for the employer: ‘If there is harassment causing danger or harm to the health of a employee or other inappropriate behaviour, the employer must take all measures available to remedy the grievances after learning of them.’

6.2.6 Instruction to discriminate (art. 2(4) Directive)

The Equality Act, (section 6(2)(3))

defines discrimination also as ‘a direction or an order to discriminate’.

In current legislation, the direction or order to discriminate has been prohibited only in cases where discrimination has been a criminal offence (Penal Code provisions on discrimination).

6.2.7 Material scope of applicability of the prohibition (art. 3 Directive) The scope of application of the Equality Act combines the scope of the two Directives which provide the background to the legislation, with the exception that discrimination in education is prohibited also on other grounds than ethnic origin.

The scope of the general applicability of the Equality Act is defined in Section 2(1) in a similar way as in the Directive:

‘This Act is applicable to both private and public enterprise in:

• conditions for access to independent occupation or trade and support for professions (paragraph 1)

;

• recruitment criteria, working conditions, terms or conditions of employment, personnel training and career advance (paragraph 2)

;

• access to training, including vocational guidance, vocational training, advanced vocational training and retraining (paragraph 3)

;

membership of, and involvement in, an organisation of workers or employers, or any organisation whose members have a particular profession, including the benefits provided for by such organisations (paragraph 4)'.

Secondly, as the same Act implements the Race Directive, section 2(2) states that on the basis of ethnic origin the Act is applicable also to:

• social and health services;

• social security benefits and financial support, discounts and advantages, based on social reasons;

62 The statute reads in Finnish: ’Jos työssä esiintyy työntekijään kohdistuvaa hänen terveydelleen haittaa tai vaaraa aiheuttavaa häirintää tai muuta epäasiallista kohtelua, työnantajan on asiasta tiedon saatuaan käytettävissään olevin keinoin ryhdyttävä toimiin epäkohdan poistamiseksi.’

63 The statute reads in Finnish: ’ohjetta tai käskyä syrjiä’.

64 The statute reads in Finnish: ’itsenäisen ammatin ja elinkeinon harjoittamisen edellytyksistä taikka elinkeinotoiminnan tukemisesta’.

65 The statute reads in Finnish: ’työhönottoperusteista, työoloista tai työehdoista, henkilöstökoulutuksesta taikka uralla etenemisestä’. The term ’työehdot’ can be translated as ‘terms and conditions of employment’

and therefore include pay and dismissal.

66 The statute reads in Finnish: ’koulutuksen, mukaan lukien erikoistumis- ja uudelleenkoulutuksen, tai ammatillisen ohjauksen saamisesta’.

67 The statute reads in Finnish: ’jäsenyydestä tai toiminnasta työntekijä- tai työnantajajärjestössä tai muussa järjestössä, jonka jäsenillä on tietty ammatti, taikka järjestön antamista etuuksista’.

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• compulsory military service, women’s voluntary military service or non- military service; and

housing and when providing property (real or personal) or any services to the public, except between two individuals.

6.2.8 Personal scope of applicability: natural and legal persons whose actions are the object of the prohibition

The prohibition contained in the Equality Act has a wide scope of applicability, which applies to employers both as natural and as legal persons and to

employees, such as co-workers.

6.3 What forms of conduct in the field of employment are prohibited as sexual orientation discrimination?

As the grounds of prohibited discrimination in the Equality Act and elsewhere in Finnish legislation have been defined as an open category (race, national or ethnic origin… sexual orientation… or other reason related to his or her person), the ‘other reason related to his or her person’ enables various interpretations of

‘sexual orientation’, as analysed in this chapter 6.3.

6.3.1 Discrimination on grounds of a person’s actual or assumed heterosexual, homosexual or bisexual preference or behaviour Neither the Act nor the explanatory memorandum to the Government proposal does not define the meaning of the term ‘sexual orientation’. Also elsewhere in Finnish legislation, reference is always made to sexual orientation without further defining the meaning. It is probably thought to be self-evident and therefore not specified that the term refers to homosexual, bisexual and heterosexual orientation.

The only known court case concerning sexual orientation discrimination, confirms that intimate contact between members of the same sex are covered by sexual orientation. The District Court of Oulu sentenced the doorman of a restaurant to pay fines and financial compensation to the victim of discrimination (Penal Code 11:9) based on sexual orientation. The doorman had removed a man by force from the restaurant after he had kissed another man in the restaurant

.

It is reasonable to include discrimination on the basis of a (false) assumption of a person’s sexual orientation in the Finnish definition of prohibited discrimination based on sexual orientation or ‘other reason’.

6.3.2 Discrimination on grounds of a person’s coming out with, or not hiding, his or her sexual orientation

Again this is not defined either in the Equality Act or elsewhere in the legislation.

68 See also 6.2.2 on the concept of sexual orientation.

69 Helsingin Sanomat 19 August 1998.

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Arguably, in the light of the case mentioned in par. 6.3.1, the courts would accept quite easily that discrimination would be in these cases based on sexual orientation.

6.3.3 Discrimination between same-sex partners and different-sex partners The Equality Act does not directly refer to the issue. There is no reference to any legal consequences of marriage, partnership registration, or common law marriage, neither does the explanatory memorandum to the Government proposal. Nor are there any references to recital 22 of the Directive.

In the light of wording of the Equality Act, it would seem to be discriminatory on the basis of sexual orientation to treat same-sex and different-sex couples differently.

This question is important, as there are provisions in Finnish legislation and especially in collective agreements that still distinguish between same-sex partners and different-sex partners in some cases.

The Act on Registered Partnerships

has eliminated almost all the legal differences between different-sex married couples and same-sex registered partners. Section 8(1) of The Act on Registered Partnerships section states:

‘The registration of a partnership shall have the same legal effects as the conclusion of marriage, unless otherwise provided.’ The exceptions are: joint adoption, paternity, and joint family name simply by registering a partnership (section 9). All the other provisions concerning the position of the spouses in legislation apply to registered partners too.

With regard to the implementation of the Directive, it is important to notice that the Partnership Act does not have direct implications for collective agreement provisions in employment. Those provisions that are governed by collective agreements such as group life insurance and holidays for partnership

registration or funerals of the deceased partner, are not obliged by the Act on Registered Partnership to cover also registered partners.

A MP has raised the issue in a written question to the Government

. The Minister of Justice in his reply regarded the situation as unsatisfactory but was confident that it would change, as collective agreements would be renewed so as to include registered partners at the end of their validity period. It was also pointed out that when holding public power either as a Government or municipal official, section 22 of the Constitution obliges the person to implement collective agreements from the human rights perspective and therefore to treat married and registered partners alike.

Presumably there are still company policies that treat same-sex common law partners differently from different-sex partners.

70 Act on Registered Partnerships [Laki rekisteröidystä parisuhteesta], 950/2001.

71 Written question from MP Annika Lapintie to Minister of Justice, KK 259/2002.

72 There are differences even in the legislation between same-sex and different-sex common law partners, but not in the scope of the Directive. When accepting the Act on Registered Partnerships, Parliament decided that the legislation concerning different-sex common law couples would not be automatically applicable to same-sex common law couples. This was seen as a separate, less important issue than the partnership legislation and should be dealt with later. Therefore there are legal differences between different-sex common law couples and same-sex common law couples in unemployment benefit

requirements. These differences are mostly in favour of same-sex common law couples; for example, the

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The current interpretation of the Child Custody and Right of Access Act

also allows same-sex couples to have joint custody of a child and there are

numerous examples of this.

The Employment Contracts Act allows the employee to stay at home to take care of a sick child (section 6) or to have a maximum of one month of nursing leave (section 3) if the child is either his/her child or a child living in his/her household. These provision are applicable also to same-sex families. But only the biological parents have the right to paternal leave.

6.3.4 Discrimination on grounds of a person’s association with gay/lesbian/bisexual/heterosexual individuals, events or organisations

Such cases might not be interpreted as being related to sexual orientation, but would most likely correspond to the ‘other reason related to his or her person’.

6.3.5 Discrimination against groups, organisations, events or information of/for/on lesbians, gays or bisexuals

The Equality Act defines direct and indirect discrimination on grounds of the treatment that an individual receives. It is likely that individuals forming groups would be able to raise the issue on the basis that they have been discriminated as individuals. The harassment has been defined in the Act in a way, which includes harassment, not only of an individual but also of a group of people (homosexuals, ethnic minorities etc). So the situation might be seen also as harassment.

It seems probable that a person who has been prevented from spreading information or organising an event might successfully fight the case.

6.3.6 Discrimination on grounds of a person’s refusal to answer, or answering inaccurately, a question about sexual orientation

The Act on the Protection of Privacy in Working Life

(section 3) prohibits the employer to ask or gather any information, which is not directly necessary for the employment relationship. In the Government’s proposal

it is further

described that an employee can refuse to answer or give an incomplete answer to a question, which is not directly connected to the employment and there must not be any negative consequences from this. There is no reason to believe that questions about sexual orientation would not be covered by the Act on the Protection of Privacy in Working Life and the Act.

income of a same-sex common law partner is not counted when calculating the unemployment benefit the other is entitled to

73 Laki lapsen huollosta ja tapaamisoikeudesta 361/1983.

74 Laki yksityisyyden suojasta työelämässä 477/2001.

75 Government proposal 75/2000.

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6.3.7 Discrimination on grounds of a person’s previous criminal record due to a conviction for a homosexual offence without heterosexual

equivalent

From 1971 to 1999 the age of consent was higher for homosexual relations than for heterosexual relations. Only five sentences were passed based on these provisions in the Penal Code, the last in 1990. Theoretically it is possible that these persons might be discriminated because of the conviction, as a clear criminal record is nowadays required for many jobs with children, including teaching positions. Although the provisions on indirect discrimination in the Equality Act would seem to apply, it is not possible to predict the outcome of a possible case.

6.3.8 Harassment

Harassment has been defined in the Equality Act as a situation when a person’s or a group of persons' dignity or integrity is violated either on purpose or de facto by the creation of an intimidating, hostile, degrading, humiliating or offensive environment.

The Government proposal gives an example that ethnically offensive material which is publicly shown in business premises could be considered harassment of a group of people. Logically, derogatory language in the workplace that is not directed to an individual could therefore be considered as harassment.

Whether expressing negative opinions on e.g. homosexuals is seen as harassment, would be determined by the Act on the basis whether this would create an intimidating, hostile, degrading, humiliating or offensive environment.

In earlier jurisprudence, the Parliamentary Ombudsman has given

a caution to a policeman who in a television debate on registered partnerships described homosexuals as sick people and said that their organisation (SETA) should not exist.

Making unwelcome sexual advances belongs to the core content of harassment and the Equality Act does not distinguish between sexual orientations when applying the provision. Also revealing a person’s sexual orientation against his or her will, would most likely be covered by harassment.

The current legislation on harassment has been explained earlier in 6.2.5.

6.4 Exceptions to the prohibition of discrimination

6.4.1 Objectively justified indirect disadvantages (art. 2(2)(b)(i) Directive) The Equality Act’s definition of indirect discrimination (section 6, subsection 2, paragraph 2)

defines objectively justified distinctions:

76 Parliamentary Ombudsman Decisions 568/4/01 and 840/4/01 given 18 December 2001.

77 The statute reads in Finnish: ’sitä, että näennäisesti puolueeton säännös, peruste tai käytäntö saattaa henkilön erityisen epäedulliseen asemaan muihin vertailun kohteena oleviin henkilöihin nähden, paitsi jos säännöksellä, perusteella tai käytännöllä on hyväksyttävä tavoite ja tavoitteen saavuttamiseksi käytetyt keinot ovat asianmukaisia ja tarpeellisia (välillinen syrjintä)’.

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‘when an apparently neutral provision, criterion or practice would put a person at a particularly disadvantaged position compared with other persons unless the provision, criterion or practice is justified by a legitimate aim and the means of accepting that aim are appropriate and necessary.’

6.4.2 Measures necessary for public security, for the protection of rights of others, etc. (art. 2(5) Directive)

The Equality Act makes no reference to measures necessary for public security etc.

6.4.3 Social security and similar payments (art. 3(3) Directive)

There are no exceptions to the prohibition of discrimination in the Equality Act or in the Government proposal with regard to social security payments. See 6.3.3.

6.4.4 Occupational requirements (art. 4(1) Directive)

The Equality Act (Section 7, Subsection 1, Paragraph 2)

defines that:

‘For the purposes of this Act, discrimination does not comprise such differential treatment that is related to the discrimination grounds defined in section 1 and is based on a genuine and decisive occupational requirement related to the nature of the particular occupational activities concerned or the context in which they are carried out.’

See also para. 6.1.5 above.

6.4.5 Loyalty to the organisation’s ethos based on religion or belief (art.

4(2) Directive)

The Equality Act itself does not refer to article 4(2) of the Directive.

However, the explanatory memorandum to the Government proposal refers to Art. 4 (2) a of the Directive. There is no referral to Art. 4 (2) b of the Directive.

There is a slight inaccuracy in quoting the article 4(2) as the Government proposal states that Member States can legislate special occupational requirements for churches and comparable institutions. The Government’s proposition seems to ignore the prerequisite of the Directive that member states can only maintain special occupational requirements because of faith or belief and not create new ones.

It is questionable whether the explanatory memorandum to the Government proposal

creates new acceptable occupational requirements for those working for the church, that have not been mentioned earlier in legislation.

The explanatory memorandum to the Government proposal describes that according to the current Church Act (Chapter 6, section 1), only a member of the church can be appointed to a religious post or as a teacher in the church.

78 The statute reads in Finnish: ’Menettely, jota ei ole pidettävä syrjintänä Tässä laissa tarkoitettuna syrjintänä ei ole pidettävä: 2) sellaista 1 §:ssä tarkoitettuun syrjintäperusteeseen liittyvää erilaista kohtelua, jonka perusteena on työtehtävien laatuun ja niiden suorittamiseen liittyvä todellinen ja ratkaiseva

vaatimus'.

79 Examples and views presented in Government proposals are important, as they are a source for judicial interpretation by the courts, in addition to legislation.

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Also the Constitutional Law Committee of the Parliament has stated that notwithstanding section 6(2) of the Constitution the church has the right to require membership for its employees.

The explanatory memorandum to the Government proposal goes further than these requirements by defining that those working as teachers, as deacons, in religious ceremonies or representing the church’s position externally may be required to have a certain religious conviction in addition to church

membership.

6.4.6 Positive action (art. 7(1) Directive)

The Equality Act allows positive action (by section 7(1)(1))

by defining that a plan aiming at achieving the goals set in the Act would not be considered as discrimination.

Furthermore, the Equality Act (section 7(2))

defines that special action aiming at de facto equality by preventing or alleviating damage caused by

discrimination grounds is allowed (positive action).

6.5 Remedies and enforcement

6.5.1 Basic structure of enforcement of employment law

The supervision of the observance of the Employment Contracts Act belongs to the Occupational Safety and Health Authorities, whose responsibility it also is to supervise the observance of the provisions on discrimination included in the Equality Act.

All employees (within both public and private sector) have the possibility to bring an alleged breach of employment law or contracts to court and, if necessary, to the appellate court.

The Labour Court is not empowered to rule upon disputes arising out of individual employment contracts concluded between an employer and an individual employee or out of the legislation regarding employment

relationships. A prerequisite for a matter to fall within the competence of the Labour Court is that the specific question involves the competence, validity, contents or extent of a collective agreement or the correct interpretation of a clause in such an agreement.

80 Constitutional Law Committee report 57/2001.

81 Government proposal 44/2003 p. 44-45. See also par. 6.1.6. for the Penal Code provisions on employment discrimination.

82 The statute reads in Finnish: Tässä laissa tarkoitettuna syrjintänä ei pidetä:

1) yhdenvertaisuussuunnitelman mukaista menettelyä, jolla pyritään tämän lain tarkoituksen toteuttamiseen käytännössä.

83 The statute reads in Finnish: Tällä lailla ei estetä sellaisia erityistoimenpiteitä, joiden tavoitteena on tosiasiallisen yhdenvertaisuuden saavuttaminen 6 §:n 1 momentissa tarkoitetusta syrjinnästä johtuvien haittojen ehkäisemiseksi tai lievittämiseksi (positiivinen erityiskohtelu). Positiivisen erityiskohtelun on oltava pyrityn tavoitteen kannalta oikeasuhteista.

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6.5.2 Specific and/or general enforcement bodies

The Equality Act section 11(1) defines that the responsibility for taking action on all employment discrimination belongs to the Occupational Safety and Health Authorities. Their activity has traditionally been the prevention of physical accidents in employment, but in the last few years other aspects including mental well being at work has been included as well. These authorities have a strong legal position, including the right to use coercive means and impose a conditional fine especially when hazardous working conditions have been found.

As the Equality Act also implements the Race Directive, section 11(2) gives Ombudsman for Minorities and Anti-discrimination Commission responsibility of enforcement of the rules required by the Race Directive. These two

enforcement bodies are limited only to the discrimination based on ethnicity.

There are no enforcement bodies for other grounds of discrimination mentioned in the Directive, except the Occupational Safety and Health Authorities.

6.5.3 Civil, penal, administrative, advisory and/or conciliatory procedures (art. 9(1) Directive)

It is the responsibility of the Occupational Safety and Health Authorities to give advice, instructions and statements on the application of provisions and

regulations on occupational safety and health. If they find probable reasons to suspect work discrimination in accordance with the Penal Code, the

Occupational Safety and Health Authorities shall report to the public prosecutor according to the Act on the supervision of labour protection and appeal in labour protection matters (131/1973).

In discrimination cases outside the scope of Penal Code provisions, it is the task of the employee to bring the issue to court. This has to be done with the help of a trade union or an attorney. The Occupational Safety and Health Authorities do not bring cases to the courts or represent employees in court.

6.5.4 Civil, penal and/or administrative sanctions (art. 17 Directive) Section 9 (1) of the Equality Act states that the provider of employment, property (real or personal), services, education or benefits breaching the prohibition of discrimination on the grounds of age, ethnic or national origin, nationality, religion, belief, disability or sexual orientation is obliged to pay compensation up to 15 000 euros to the victim. The compensation can also be ordered for breaching the prohibition on instruction to discriminate or

victimisation set up in the section 7.

The above compensation paragraph has, however, to be interpreted in the light of the scope of the Equality Act.

Therefore compensation because of

discrimination based on sexual orientation can only be bestowed if the discrimination has happened in employment or education and not while providing services.

84 See 6.5.10 for victimisation.

85 See 6.2.7.

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The compensation can also be left without adjudication and the above- mentioned maximum amount of 15 000 euros may also be exceeded if considering all circumstances it is justified.

The compensation does not affect the victim’s right to claim compensation for damages by other laws, especially under the Tort Liability Act

. Neither does the compensation prohibit the applicability of the Penal Code provisions according to which the one breaching the prohibition on employment

discrimination shall be found guilty of work discrimination and sentenced for up to six months imprisonment or a fine.

Chapter 12, section 1, of the Employment Contracts Act states that if the employer intentionally or through negligence commits a breach against obligations arising from the employment relationship or the Employment Contracts Act, they shall be liable for the loss thus caused to the employee.

According to chapter 12, section 2, if the employer has terminated an employment contract contrary to the grounds laid down in the Employment Contracts Act, the employer must be ordered to pay compensation for the unjustified termination of the employment contract. Also if the employee has cancelled the employment contract on the grounds arising from the employer's intentional or negligent actions (as laid down in chapter 8, section 1, of the Employment Contracts Act), the employer must be ordered to pay

compensation for unjustified termination of the employment contract. The exclusive compensation must be equivalent to the pay due for a minimum of three months or a maximum of 24 months.

The Equality Act includes a provision for reacting to the terms of contracts, which are discriminatory (Section 10)

. Terms of contracts or agreements can be nullified or changed in court if they are found to be discriminatory as defined in the Act.

6.5.5 Natural and legal persons to whom sanctions may be applied Section 9 in the Equality Act establishes that compensation may be ordered if the discrimination takes place in employment, providing goods or services or advantages or when providing education. Sanctions are applied to the employer as a legal person. An employer who is a natural person can be sanctioned as well. The use of a job agency does not free the employer from the responsibility to pay compensation.

It is further explained in an explanatory memorandum to the Government proposal that compensation is not applicable between two private individuals e.g. between co-workers

. The employer cannot be made to pay

compensation even in the case of negligence to harassment between co- workers. This should be compared to the fact that the Committee

preparing the implementation of the directive on the implementation of the principle of

86 Tort Liability Act 412/1974.

87 The statute reads in Finnish: ‘Sopimusehtoja, jotka ovat 6 tai 8 §:ssä säädetyn kiellon vastaisia, voidaan muuttaa tai jättää ne huomioon ottamatta’.

88 Government proposal 44/2003 page 48.

89 Tasa-arvolain kehittämistoimikunnan mietintö 31 October 2002 page 144.

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equal treatment for men and women

has suggested that the employer should be made responsible for harassment by co-workers if the employer has been informed about the harassment and has neglected to take measures to prevent harassment. It is not clear why this stimulus for the employer is not included in the Act.

6.5.6 Awareness among law enforcers of sexual orientation issues There is no reference to any enforcement or provisions preventing sexual orientation discrimination in the Equality Act or in the explanatory memorandum to the Government proposal. As a matter of fact the Act and the explanatory memorandum to the Government proposal refer to sexual orientation only as one in a list of prohibited discrimination grounds. All the examples in the explanatory memorandum to the Government proposal, such as the need for further awareness raising among judges or prosecutors, refer to ethnicity or disability.

In reality the awareness among law enforcers of sexual orientation issues is not sufficient. As described above the Occupational Safety and Health Authorities have their background on physical occupational safety and questions like mental well being and discrimination at work are just gaining ground in their daily work. Of the discrimination grounds only ethnic discrimination has been individually highlighted in their work.

6.5.7 Standing for interest groups (art. 9(2) Directive)

Finnish legislation does not allow any interest group to take legal action on behalf of an individual and class action suits are not allowed when applying any law. The Equality Act does not have any provisions to change the situation. It seems that the Finnish Government is using the possibility described in recital 29: ‘without prejudice to national rules of procedure concerning representation and defence before the courts’ to maintain the current situation.

Nevertheless, a lawyer working for any organisation can represent a victim by proxy from the victim.

6.5.8 Burden of proof of discrimination (art. 10 Directive)

Section 17

in the Equality Act defines the burden of proof in applying the Act:

‘If a person who considers him/herself discriminated, as defined in section 6, establishes before a court or other competent authority, information from which it may be presumed that there has been a breach of the prohibition of

discrimination, it shall be for the respondent to prove that there has been no breach of the prohibition. This provision does not apply to criminal procedures’.

The reference that the provision is not applicable to criminal procedures seems to be out of place, as the Act has no legal connection to criminal law.

90 Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

91 The statute reads in Finnish: ’Jos joku, joka katsoo katsoo joutuneensa 6 §:n vastaisen menettely kohteeksi, esittää tässä laissa tarkoitettua asiaa tuomioistuimessa tai toimivaltaisessa viranomaisessa käsiteltäessä selvitystä, jonka perusteella voidaan olettaa, että syrjinnän kieltoa on rikottu, vastaajan on osoitettava, että kieltoa ei ole rikottu. Säännöstä ei sovelleta rikosasian käsittelyssä'.

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An earlier similar rule was included in the Employment Contracts Act, although this interpretation of that Act is to be found only in the explanatory

memorandum to the Government proposal,

and not in the Act itself.

6.5.9 Burden of proof of sexual orientation

No provision on the burden of proof has been included in the Equality Act or in the Government proposal. In the Government proposal it is required that the plaintiff claims that the discrimination has been connected to a prohibited discrimination ground. It is not stated however that the plaintiff should make claims or comments e.g. regarding his/her sexual orientation.

6.5.10 Victimisation (art. 11 Directive)

Section 8 of the Equality Act prohibits victimisation:

‘Unequal differential treatment or negative treatment because a person has complained or taken measures to ensure equality is prohibited.’

As explained in 6.5.4 compensation can also be ordered in the case of victimisation.

6.6 Reform of existing discriminatory laws and provisions 6.6.1 Abolition of discriminatory laws (art. 16(a) Directive) No such legislative action.

6.6.2 Abolition of discriminatory administrative provisions (art. 16(a) Directive)

No such legislative action.

6.6.3 Measures to ensure amendment or nullity of discriminatory

provisions included in contracts, collective agreements, internal rules of undertakings, rules governing the independent occupations and professions, and rules governing workers’ and employers’

organisations (art. 16(b) Directive)

According to Section 10 of the Equality Act (‘Changing discriminatory

contractual terms’), courts may, in cases being processed by them, change or ignore contractual terms that are contrary to the prohibition of discrimination defined in Equality Act.

The travaux préparatoires show that this section is also applicable to collective agreements. The travaux préparatoires for Section 10 recall the general rule which states that the Labour Court has sole jurisdiction in applying collective agreements, and that ordinary courts cannot interpret collective agreements.

92 Government proposal 157/2000.

93 The statute reads in Finnish: ’Ketään ei saa asettaa epäedulliseen asemaan tai kohdella siten, että häneen kohdistuu kielteisiä seurauksia, koska hän on valittanut tai ryhtynyt toimenpiteisiin

yhdenvertaisuuden turvaamiseksi.’

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6.6.4 Discriminatory laws and provisions still in force None.

6.7 Concluding remarks

The Equality Act seems to fulfil the requirements involved in implementing the Directive. However, it does not include any possibility for interest groups to act on behalf or in support of the victim (6.5.7). Under Finnish legislation they may only represent the victim in his/her name, but cannot take individual action. This seems to contradict article 9 in the Directive, but may be allowed considering recital 29 in the Directive.

List of literature used in footnotes

Hiltunen, Rainer, ‘Työsyrjinnän kielto Suomen ja Euroopan unionin lainsäädännössä‘ [Prohibition of employment discrimination in Finnish and European Union legislation], in: Jukka Lehtonen (ed.),Seksuaali- ja sukupuolivähemmistöt työelämässä [Sexual and gender minorities in working life], Helsinki, Stakes, Reports 269, 2002, 9-23.

Laki ja samaa sukupuolta olevien parisuhteet [Law and Same-sex partnerships, Ministry of Justice publication] Oikeusministeriön julkaisusarja 2/1999, Helsinki, 1999.

Länsineva, Pekka, ’Perusoikeudet – nyt’ [Civil rights – now] in: Länsineva, Pekka; Viljanen, Veli-Pekka, Perusoikeuspuheenvuoroja [Civil rights addresses], Turku, Turun yliopisto, 1998.

Månsson, Ulf , ‘Synti, rikos, ihmisoikeus - oikeustaistelun historiaa ja nykypäivää [Sin, crime, human right - the history and presence of legal struggle] in: Rakkauden monet kasvot, Espoo, Weilin + Göös, 1985.

Nuutila, Ari-Matti, ‘Työrikokset’ [Labour offences] in: Heinonen, Olavi; Koskinen, Pekka; Lappi-Seppälä, Tapio; Majanen, Martti; Nuotio, Kimmo; Nuuttila, Ari-Matti; Rautio, Ilkka, Rikosoikeus [Criminal Law], Juva, WSOY, 1999, 990-1005.

Scheinin, Martin, ‘Yhdenvertaisuus ja syrjinnän kielto’ [Equality and prohibition of discrimination], in:

Hallberg, Pekka; Karapuu, Heikki; Scheinin, Martin; Tuori, Kaarlo; Viljanen Juha-Pekka, Perusoikeudet [Civil rights], Juva, WSOY, 1999, 231-261.

Tuori, Kaarlo, ’ Perusoikeuksien ja ihmisoikeuksien turvaamisvelvollisuus’ [The obligation to guarantee civil and human rights] in: Hallberg, Pekka; Karapuu, Heikki; Scheinin, Martin; Tuori, Kaarlo; Viljanen Juha- Pekka, Perusoikeudet [Civil Rights], Juva, WSOY, 1999, 667-673.

Viljanen, Juha-Pekka, ’Perusoikeuksien soveltamisala’, [The scope of application of Civil Basic Rights] in:

Hallberg, Pekka; Karapuu, Heikki; Scheinin, Martin; Tuori, Kaarlo; Viljanen Juha-Pekka, Perusoikeudet [Civil rights], Juva, WSOY, 1999, 1111-1156.